Sreedevi (wife of late Krishnan Nair Padmalayam) and Dileep (son of late Krishnan Nair) v. State of Kerala and The Custodian Ecologically Fragile Land, Principal Chief Conservator of Forests (EXTW), Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** # **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 23[RD] DAY OF DECEMBER 2022 / 2ND POUSHA, 1944** # **MFA (FOREST) NO. 26 OF 2011 AGAINST THE ORDER/JUDGMENTOA 26/2008 OF FOREST TRIBUNAL,** ## **PALAKKAD** ## **PETITIONERS:** - 1 SREEDEVI, W/O.LATE KRISHNAN NAIR PADMALAYAM,KAILIYAD,SHORNUR-2,OTTAPALAM TALUK,, PALAKKAD DISTRICT ,PIN 679 122. - 2 DILEEP S/O.LATE KRISHNAN NAIR -DO- BY ADVS. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. ## **RESPONDENTS:** - 1 STATE OF KERALA AND ANOTHER SECRETARY,GOVERNMENT OF KERALA,THIRUVANANTHAPURAM,, PIN 695 001. - 2 THE CUSTODIANECOLOGICALLY FRAGILE LAND),PRINCIPAL CHIEF CONSERVATOR OF FORESTS, (EXTW),STATE OF KERALA,THIRUVANANTHAPURAM,, PIN 695 001. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ## **THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 23.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **M.F.A (Forest) No.26 of 2011 2** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. -----------------------------------------M.F.A (Forest) No.26 of 2011** **----------------------------------------Dated this the 23[rd] December, 2022** ## **JUDGMENT** ## **K.Vinod Chandran, J.** The applicants in the OA filed under S.10 of the Kerala Forest(Vesting and Management of Ecologically Fragile Lands) Act, (For brevity 'the EFL Act') impugn the order of the Tribunal, which found the scheduled lands to be ecologically fragile, capable of vesting under that Act. 2. The original applicant was concerned with 4.13 acres lying in Sy.No.168/11A of Chalavara Village; devolved on him, on the death of his father, Padmanabhan Nair. The applicant also having died during the proceedings, his wife and son were impleaded as supplementary applicants 2 and 3. Before the Forest Tribunal it was contended that earlier with respect to the same property proceedings ## **M.F.A (Forest) No.26 of 2011 3** were taken under the The Kerala Private Forest (Vesting and Assignment) Act, 1971 (for brevity 'the Vesting Act') which was challenged successfully by Padmanabhan Nair. Despite the Tribunal having declared the lands to be exempted from vesting, on 08.06.1979, the same was not restored to the possession of the owners. Later, when a writ petition was filed seeking restoration, it was submitted by the respondent that the property has been subsequently vested under the EFL Act . It was also averred that the application scheduled property is not a forest land, does not lie contiguous or encircled by forest land and there is no predominant natural vegetation existing thereon. The property was cultivated with human labour and skill and is bounded on all sides by dry lands and _kudiyiruppus_ . The respondent though admitted that restoration was not granted, even after declaration by Forest Tribunal, claimed dense natural vegetation including forest species trees and lush undergrowth, regenerated in the property, which exist as an ecologically fragile land. 3. The Tribunal relied heavily on the commission report which spoke of trees existing in the property with the age of 35 to 80 ## **M.F.A (Forest) No.26 of 2011 4** years. There were 1000 trees in the property; which property was lying in different plains. The trees were indicated by the Commissioner to be naturally grown trees. Though the applicant pointed out the reference to medicinal plants and other fruit bearing trees in their objection to the commission report, the Tribunal refused to consider it since the applicant did not examine the Commissioner. It was also found that the property is vested on the north and west by vested forest. Looking at the definition of ecologically fragile lands, it was held that the order under the Vesting Act has no relevance insofar as adjudication under the EFL Act. The contention regarding the absence of a report of the advisory committee under S.15 of the EFL Act was also held to be irrelevant insofar as the vesting was under S.3of the EFL Act and not under S.4; which provision alone warrants vesting through a notification on the basis of a report and recommendation of the advisory committee. 4. Learned Counsel appearing for the appellant, Sri. K.V Sohan relied on a Division Bench judgment of this Court in _**State of Kerala v. Glen Leven Estates (P) Ltd. 2022(6) KLT 439**_ , and argued ## **M.F.A (Forest) No.26 of 2011 5** that _**State of Kerala v. Kumari Varma 2011(1) KLT 1008**_ would be squarely applicable. The owners of the property were deprived of the possession despite a declaration by the Tribunal under the Vesting Act. This is the sole reason for regeneration of natural vegetation and the Commissioner also noticed fruit bearing trees. Learned Special Government Pleader (Forests) Sri.Nagaraj Narayanan seeks to distinguish _**Kumari Varma**_ , insofar as the applicants herein, having never sought restoration of the property. It is pointed out that there can be no fault found on the officials of the State who have to deal with a number of such issues all over the State. The original owner obtained a declaration as early as in 1979 and he never approached the Custodian for restoration, till his death on 10.05.1989. In fact even before his death the properties were bequeathed to his son in 1979. After the death of the original owner, the son approached the High Court for restoration only in 2003, by which time, the EFL Act came into force and there was regeneration of natural vegetation in the property converting it to an ecologically fragile land. 5. The findings in the impugned order that no ## **M.F.A (Forest) No.26 of 2011 6** recommendation of the advisory committee is required since the vesting is under S.3, cannot at all be faulted. As far as the irrelevance of the order under the Vesting Act, though on principle it is correct; _**Kumari Varma**_ trod a different path based essentially on facts. There, essentially similar situation arose, when the Forest Department deprived the owners, the possession of a cardamom plantation, on allegation of vesting under the Vesting Act. The owners approached the Tribunal and obtained a declaration that the land having cardamom plantation is not liable to be vested in the Government. The State unsuccessfully approached this Court with an appeal and also the Hon'ble Supreme Court. Despite the Hon'ble Supreme Court having affirmed the declaration issued by the Tribunal, the property was not restored to the owners as is statutorily mandated under S.8(3) of the Vesting Act. The property remained unattended till the appointed day under the EFL Act, ie.02.06.2000. Based on an ordinance of the year 2000, a notification was issued proclaiming the vesting of the very same lands, exempted as cardamom plantation under the Vesting Act, to have vested under the EFL Act. The contention taken by the State was that ## **M.F.A (Forest) No.26 of 2011 7** whatever be the cause, there is regeneration of a forest in the interregnum of the two enactments and hence the property cannot be absolved of vesting; especially when it lies as an ecologically fragile land as on the appointed day under the EFL Act. A Division Bench of this Court found that, the State having illegally divested the owners of the possession of the lands and also having not restored the properties to the owners despite a declaration of the Tribunal, cannot fall back on such illegality to claim vesting under the EFL Act. The reasoning was that, if the property had been restored, the owners would have resumed cultivation in the said land. Of course, in cases where restoration was made and still there is no cultivation resumed, the rigor of the EFL Act cannot be digressed from. Essentially the question would be one on facts, as to whether the restoration was made in such a manner enabling the owners to resume cultivation. 6. In the present case, though no appeal was filed by the State, despite a declaration by the Forest Tribunal in 1979, the properties were not restored to the owner. The contention taken that the applicant never sought for such restoration cannot be ## **M.F.A (Forest) No.26 of 2011 8** countenanced, especially in view of the specific statutory mandate under S. 8(3) of the Vesting act. Sub-section (3) of Section 8 provides that when the Tribunal declares that any land is not a private forest or that it is not liable to be vested, then if the appeal before the High Court is rejected or no appeal is filed within the time specified for an appeal, the Custodian has to restore the properties to the owner. The Custodian hence has a statutory duty to restore the property after the time specified in the Act and it cannot be argued that the same would be carried out only if there is a request made for restoration. Admittedly, in the above case from the time of the Vesting Act till the alleged vesting under the EFL Act and later too, the property remained in the custody of the State. The owners were deprived of the enjoyment and possession of the property and merely because there was regeneration of trees, it cannot be termed an ecologically fragile land. The regeneration of natural vegetation was the consequence of the restoration having not been effected, of the cultivable lands. We also notice that the commission report specifically speaks of fruit bearing trees in the property which is a clear indication of systematic cultivation having ## **M.F.A (Forest) No.26 of 2011 9** been carried on long back. We find the order of the Tribunal to be erroneous and we set it aside. The application filed by the applicants would stand allowed with the declaration that the scheduled lands are not ecologically fragile lands. Appeal stands allowed leaving the parties to suffer their respective costs. Sd/- **K.VINOD CHANDRAN, JUDGE** Sd/- **C.JAYACHANDRAN, JUDGE** **jma**